Citation Nr: 21012976 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-17 270 DATE: March 8, 2021 ORDER A certificate of eligibility for automobile and adaptive equipment, or for adaptive equipment only, is dismissed. The claim for entitlement to special home adaptation grant is dismissed. FINDINGS OF FACT 1. The Appellant is ineligible to substitute for the Veteran in the claim for automobile and adaptive equipment or adaptive equipment only, since this benefit is not a “periodic monetary benefit.” 2. The Appellant is ineligible to substitute for the Veteran in the claim for special home adaptation grant, since this benefit is not a “periodic monetary benefit” and this benefit was not granted to the Veteran prior to his death. CONCLUSIONS OF LAW 1. Due to the Veteran’s death, the Board has no jurisdiction to adjudicate the merits of the claim for automobile and adaptive equipment, such that it is dismissed as moot. 38 U.S.C. §§ 3902, 5121, 5121A, 7104(a); 38 C.F.R. §§ 3.808, 3.1000, 3.1010(a), 20.1302. 2. Due to the Veteran’s death, the Board has no jurisdiction to adjudicate the merits of the claim for special home adaptation grant, such that it is dismissed as moot. 38 U.S.C. §§ 3902, 5121, 5121A, 7104(a); 38 C.F.R. §§ 3.808, 3.1000, 3.1010(a), 20.1302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board acknowledges that VA treatment records dated after the issuance of the last statement of the case, dated February 2016, have been added to the file. However, as will be described below, the issues on appeal must be dismissed as a matter of law, so any due process or notice errors are not prejudicial to the Appellant. See Mason v. Principi, 16 Vet. App. 129 (2002) (holding that when the application of the law to the undisputed facts is dispositive, no discussion of VA’s duties to notify and assist is necessary); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (U.S. 1994) (holding that “where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law.”). Cf. FED. R. CIV. P. 12(b)(6) (‘failure to state a claim upon which relief can be granted’)”). The Veteran served on active duty in the United States Army from September 1965 to September 1968. His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, among others. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Unfortunately, during the course of the appeal, the Veteran died in October 2020. The Appellant is the Veteran’s surviving spouse. A short time after his death, she filed a November 2020 Application for Dependency and Indemnity (DIC) (VA Form 21P-534EZ). This Application for DIC is also considered to be a pending claim for substitution, because the Veteran had an appeal pending when he died. See 38 C.F.R. §§ 3.152(b)(2), 3.1010(c)(2). In a December 2020 VA decision, the AOJ accepted the Appellant as the Veteran’s substitute for purposes of processing his appeal to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. See also 79 Fed. Reg. 52977 52985 (Sept. 5, 2014). Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or adaptive equipment only. 38 U.S.C. § 3902(a), (b); 38 C.F.R. § 3.808. A veteran may qualify for a grant for necessary special home adaptations if he has a service-connected disability that results in one of the enumerated conditions in 38 C.F.R. § 3.809a(b). As stated above, the unfortunate passing of the Veteran occurred in October 2020, during the pendency of this appeal. As a matter of law, appellants’ claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits of the claim of entitlement to automobile and adaptive equipment or for adaptive equipment only and the claim for entitlement to special home adaptation grant have become moot by virtue of the death of the Veteran and must be dismissed without prejudice for lack of jurisdiction. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. Although the Appellant, as his lawful surviving spouse, has been substituted as the claimant for purposes of processing the appealed claims to completion, the substitution claims must be one for “periodic monetary benefits.” 38 U.S.C. § 5121; 38 C.F.R. §§ 3.1000(a), 3.1010(a). As a matter of law, a claim seeking financial assistance for automobile and adaptive equipment, as well as a claim seeking financial assistance for a special home adaptation grant are not claims for “periodic monetary benefits” as that term is defined under relevant VA statute and regulation for purposes of accrued benefits and substitution. See 38 U.S.C. §§ 5121, 5121A; 38 C.F.R. §§ 3.1000, 3.1010. The Court held that automobile purchase assistance is not an accrued benefit as a matter of law even when entitlement to the benefit was established prior to an appellant’s death. See Gillis v. West, 11 Vet. App. 441, 442 (1998). This is because the automobile and adaptive equipment claim administered through the Veterans Health Administration (VHA) is a claim for a one-time payment only afforded to veterans. 38 U.S.C. § 3902(a). This specific issue therefore is not eligible for substitution or consideration for accrued benefits. It is excluded from the Appellant’s current substitution appeal. With respect to the special home adaptation grant, the Court held that as a matter of law, a one-time payment for assistance for specially adapted housing does not qualify as a “periodic monetary benefit” for purposes of 38 U.S.C. § 5121 and, therefore, is not payable as an accrued benefit. See Pappalardo v. Brown, 6 Vet. App. 63 (1993). The Board recognizes that this case specifically addresses specially adapted housing. However, as specially adapted housing is considered to be a greater benefit to the applicant, and a special home adaptation grant is only considered when the applicant has been found to be ineligible for specially adapted housing, this Court case is also applicable a special home adaptation grant. In Pappalardo v. Brown the Court held that although specially adapted housing does not qualify as a “periodic monetary benefit,” it is not the dispositive issue. The dispositive issues, as a factual matter, are whether the grant had been approved by VA before the veteran’s death and, if so, whether VA would then have authority to make reimbursement to the appellant. In this regard, not only is a special home adaptation grant not a “periodic monetary benefit,” but at the time of the Veteran’s death, his appeal for entitlement to special home adaptation grant was pending. As such, this benefit had not been granted by VA before his death. Therefore, this specific issue is not eligible for substitution or consideration for accrued benefits and is thus excluded from the Appellant’s current substitution appeal. It follows that the adjudication of the automobile and adaptive equipment claim and the adjudication of the claim for entitlement to special home adaptation grant on the merits have become moot by virtue of the Veteran’s death. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. Consequently, the claims must be dismissed for lack of jurisdiction as the Appellant is ineligible to substitute for the Veteran with respect to these particular claims. See 38 U.S.C. §§ 5121A, 7104(a). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.